Ombudsman position at Correction Dept. still unfilled

AS THE COVID-19 pandemic spread through the prison system, lawmakers inserted an item into last year’s budget bill creating a new position of ombudsman at the Department of Correction. 

The ombudsman was supposed to keep an independent eye on the department to make sure officials were complying with health and safety best practices during the pandemic, including efforts to reduce the prison population. 

Gov. Charlie Baker signed the budget in December 2020. But eight months later, the ombudsman still hasn’t been hired. When lawmakers passed language in this year’s budget to reauthorize the ombudsman for this year, Baker used his veto power to try to limit the ombudsman’s authority.  

Elizabeth Matos, executive director of Prisoners’ Legal Services, which defends prisoners’ rights and has frequently criticized the Department of Correction, said the ombudsman’s position is desperately needed. “There are numerous indicators this is not an agency we can rely on to police itself and to do what needs to be done to protect people,” Matos said. 

The fiscal 2021 budget language mandated the creation of an independent ombudsman’s office within the Department of Correction for the duration of the COVID-19 state of emergency.  

Under the law, the ombudsman would be appointed by the attorney general and the Department of Public Health. The individual would monitor “actions taken or not taken by the department to ensure the health and safety of individuals under the department’s purview,” and would establish public health standards for the prisons. The ombudsman would have access to information about the department’s use of release mechanisms, like home confinement or furloughs, to limit the number of people incarcerated.  

The office would be required to report to the Legislature biweekly on efforts to mitigate infections, efforts related to “safe depopulation,” and the number of inmates released due to COVID-19. If the department did not take appropriate steps to mitigate infections, department officials could be called to testify publicly before legislative committees on the department’s noncompliance and a remediation plan.  

Some of this information is already being reported publicly through reporting requirements imposed by the Supreme Judicial Court to resolve a lawsuit. 

Attorney General Maura Healey’s office solicited applications, vetted a candidate, and recommended that candidate. But the Department of Correction never hired the person. 

According to the attorney general’s office, in order for that candidate to accept the appointment and have a meaningful role, the person needed more detail and clarity from the Legislature. While Healey’s office did not provide details, Matos said she believes the dispute was over whether the ombudsman would be a full-time salaried position and whether it would be independent from or part of the Department of Correction. 

The state of emergency ended in June 2021, but lawmakers attempted to revive the position. They included a provision in the fiscal 2022 budget, which Baker signed July 16, extending the ombudsman’s position through the end of the fiscal year on June 30, 2022. The Legislature required the Department of Correction to report by Sept. 1, 2021, on the status of the appointment. 

According to correction officials, the DOC and the Executive Office of Public Safety and Security have begun a process to create the new office. The agency is working on identifying and engaging independent experts to assist and hopes to have a team in place later this year. 

Department officials say they have instituted data-based health and safety measures, while educating inmates about the importance of the COVID-19 vaccine, which is available to them. 

However, one additional wrinkle to the hiring process came when Baker acted on the budget and tried to limit the authority of the ombudsman. The Legislature wrote the law so the ombudsman would oversee public health and safety precautions and also efforts related to reducing the prison population.  

Baker signed the provision giving the ombudsman oversight authority over health and safety, but vetoed language giving the ombudsman oversight over the release of prisoners. The explanation Baker gave was that the language was not consistent with his initial budget recommendation. 

Rep. Michael Day, a Stoneham Democrat who chairs the Judiciary Committee, said lawmakers “didn’t get much of a rationale” for why Baker vetoed that section. 

But in a follow-up statement, Baker’s office said language requiring the state to evaluate various methods of releasing prisoners was infeasible or contradictory due to other laws governing the use of medical parole and furloughs. 

Day said lawmakers initially created the ombudsman position in response to the COVID-19 emergency “as an avenue for individuals to make their voices heard in an expeditious manner,” whether they be inmates, family members, or advocates. “There was a lockdown and so we thought it important that concerns about the way the DOC was handling public health issues inside these facilities needed to be brought to light,” Day said. 

Day said getting the ombudsman in place remains a priority for the Legislature. He worries that the Delta variant of the virus is causing breakthrough cases even among vaccinated people, and neither the inmate population nor correction officers are at the level of herd immunity yet. The virus is “evolving every day,” he said. “I think the insight and oversight into this particular area is very important.” 

The House overrode Baker’s veto 132-27, and the Senate overrode it 37-3. 

The number of COVID-19 infections in prisons remains low, according to data produced by the DOC.  

A daily testing dashboard of DOC inmates, which had data through Monday, found that the last time an inmate tested positive was on Saturday when there were between one and four positives at MASAC in Plymouth. Before that, the last positive test was last Wednesday, when between one and four inmates at the Massachusetts Treatment Center in Bridgewater tested positive. (When a number is lower than four, the department does not provide the actual number.) 

The last report filed with the SJC-appointed special master found that, as of July 15, there were only three active COVID cases in county jails (one in an inmate and two in staff). The Department of Correction at that time reported no active cases. 

Despite the low rate of infections, Matos said, Prisoners’ Legal Services remains concerned that low vaccination rates in prisons could speed the spread the virus.  

“Our prisons and jails are going to continue to be hotspots as the pandemic continues on and the variant makes its way through the state and through congregate settings again,” Matos said.